Académique Documents
Professionnel Documents
Culture Documents
Cheryl M. Navarro
2007-0026
Arellano University School of Law
DEFINITION OF TERMS
Conflict of Laws
- or Private International Law
- that part of the municipal law of a state which directs its
courts and administrative agencies, when confronted with
a legal problem involving a foreign element, whether or
not they should apply foreign law or foreign laws.
Public International Law
- the body of legal rules which apply between sovereign
states and such other entities as have been granted
international personalities.
DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC
INTERNATIONAL LAW
CONFLICT OF LAW
1.) MUNICIPAL
2.) PRIVATE
INDIVIDUALS
BASIS
Nature
Persons Involved
PRIVATE
Transactions
RESORT TO
MUNICIPAL
TRIBUNALS
Remedies/
Sanctions
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LAW OF NATIONS
INTERNATIONAL
SOVEREIGN STATES
& ENTITIES
POSSESSED OF AN
INTERNATIONAL
PERSONALITY
GENERALLY
AFFECTING PUBLIC
INTEREST; THOSE
WHICH IN GENERAL
ARE OF INTEREST
TO SOVEREIGN
STATES
MAY BE FORCIBLE
OR PEACEFUL
Forcible:
1.
severance of
diplomatic
relations,
2.
retorsions,
3.
4.
5.
6.
reprisals,
embargo,
boycott,
nonintercourse,
7.
pacific
blockades,
8.
collective
measures under
the UN Charter,
and
9.
WAR
Peaceful:
1.diplomatic
negotiation,
2.tender & exercise
of good offices,
3.mediation,
4.inquiry and
conciliation,
5.arbitration,
6.judicial settlement
by the ICJ,
7.reference to
regional agencies,
8.reference to the
UN
Theory of Comity
- we apply the foreign law because of its CONVENIENCE,
and finally, because WE WANT TO GIVE PROTECTION to
our citizens, residents and transients in our land.
Theory of Vested Rights
- we SEEK TO ENFORCE not the foreign law itself but THE
RIGHTS THAT HAVE BEEN VESTED under such foreign
laws.
Theory of Local Law
- We apply foreign law not because it is foreign, but
BECAUSE OUR OWN LAWS, by applying similar rules,
REQUIRE US TO DO SO;
- It is as if the foreign law has become PART AND PARCEL
of our own local law.
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merely a part of status, and the sum total of his rights and
obligations.
The Civil Code distinguishes 2 kinds of capacity: CAPACITY
TO ACT and JURIDICAL CAPACITY.
Capacity to act or ACTIVE CAPACITY is the power to do acts
with legal effects
Juridical capacity or PASSIVE CAPACITY is the fitness to be
the subject of legal relations
Personal Law
- The law that attaches to an individual, wherever he may
go- a law that generally governs his status, his capacity, his
family relations, and the consequences of his actuations.
- This may be the NATIONAL LAW of his DOMICILIARY
LAW or the LAW OF THE SITUS depending upon the
theory applied and enforced in the forum.
Nationality Theory
- the theory by virtue of which the status and capacity of an
individual are generally governed by the law of his
nationality.
Naturalization
- a judicial process of acquiring citizenship where formalities
of the law have to be complied with, including a JUDICIAL
HEARING and APPROVAL OF THE PETITION
- it may also mean the acquisition of another citizenship by
such acts as marriage to a citizen, and the exercise of the
option to elect a particular citizenship.
Domiciliary Theory
- the theory that in general, the status, condition, rights and
obligations, and capacity (SCROC) of a person should be
governed by the law of his domicile.
Situs or Eclectic Theory
- in general, the capacity, legal condition, or status (C.LC.S)
of an individual should be governed by the law of the place
where an important element of the problem occurs or
situated.
- If the participation of the individual concerned is active as
when he does the act voluntarily, the governing law is the
law of the actual situs of the place of the transaction or
event.
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RENVOI
- literally means REFERRING BACK;
- the problem arises when there is doubt as to whether a
reference to a foreign law is a reference to the internal law
of said foreign law, or is a reference to the whole of the
foreign law, including its conflicts rules.
- renvoi (from the French, meaning "send back" or "to return
unopened") is a subset of the choice of law rules and it
may be applied whenever a forum court is directed to
consider the law of another state.
DOUBLE RENVOI
- occurs when the local court, in adopting the foreign court
theory, discovers that the foreign court accepts the renvoi
- Double Renvoi or the Foreign Courts Doctrine which will
also ensure parity of result so long as no other relevant
law is using it. In this scenario, the forum court considers
that it is sitting as the foreign court and will decide the
matter as the foreign court would.
Transmission
- the process of applying the law of a foreign state through
the law of a second foreign state.
Marriage as a contract
- ARTICLE 1 FAMILY CODE:
Marriage is a special contract of permanent union between
a man and a woman entered into in accordance with law
for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution
whose nature, consequences and incidents are governed
by law and not subject to stipulations except that marriage
settlements may fix the property relations during the
marriage within the limits provided by the Family Code.
- marriage as any other contract has two kinds of requisites:
the formal and the essential requisites.
Marriage as a Status
- carries with it implications in two fields:
1. the realm of personal rights and obligations of the
spouses; and
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ANNULMENT
Can be granted for causes
existing prior to or at the time
the wedding takes place
Grounds are given by the lex
loci celebrationis
Questions the very existence of
the status
Adoption
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Personal Property
- movable property
- governed by the law of the owner (MOBILIA SEQUUNTUR
PERSONAM)
- may be tangible or intangible
- TANGIBLES- Choses in possession
- INTANGIBLES- Choses in action (such as shares of stock,
franchises, and copyrights)
REAL AND PERSONAL PROPERTIES
FACTUAL SITUATION
1) Real property
- extrinsic and intrinsic
validity of
alienations,
transfers,
mortgages,
capacity of parties,
interpretation of
documents,
effects of
ownership,
co-ownership,
accession,
POINT OF CONTACT
Lex rei sitae (Art. 16, NCC)
usufruct,
lease,
easement,
police power,
eminent domain,
taxation,
quieting of title,
registration and
prescription
Exceptions:
a) successional rights
b) capacity to succeed
c) contracts involving real
property but which do not
deal with the title thereto
d) contracts where the real
property is given as
security
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b) means of transportation
-
vessels
other means
disposition of alienation
of the goods
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domicile)
b) lex loci voluntatis/ lex loci
intentionis (proper law of
the contract)
c) taxation of debts
d) administration of
debts
e) negotiability or nonnegotiability of an
instrument
f) validity of transfer,
delivery or
negotiation of the
instrument
g) effect on a
corporation of the
sale corporate
shares
h) effect between the
parties of the sale
of corporate shares
i) taxation on the
dividends of
corporate shares
j) taxation on the
income of the sale
corporate shares
k) franchises
l) goodwill of a
business and
taxation thereon
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other theories:
1) NATIONAL LAW OF THE
CREDITOR OR DEBTOR
2) DOMICILE OF THE
DEBTOR OR THE
CREDITOR
3) LEX LOCI CELEBRATIONIS
4) LEX LOCI SOLUTIONIS
c) domicile of the creditor
d) lex situs of assets of the
debtor (for these assets
can be held liable for the
payment of the debts)
e) the right embodied in the
instrument
f) in general, situs of the
instrument at the time of
transfer, delivery or
negotiation
g) law of the place of
incorporation
h) lex loci voluntatis/lex loci
intentionis
i) law of the place of
incorporation
j) law of the place where
the sale was
consummated
k) law of the place that
granted them
m)patents, copyrights,
trademarks, trade
names
Chose
- a thing, an article of personal property
- a chattel personal, and is either IN ACTION OR IN
POSSESSION
Chose in Action (Intangible Personal Property)
- a thing in action
- the right of bringing an action or
- right to recover a debt or money
Chose in action means any of the following:
1) Right of proceeding in a court of law to procure payment
of sum of money, or right to recover a personal chattel or
a sum of money by action;
2) A personal right not reduced into possession, but
recoverable by a suit at law;
3) A right to personal things of which the owner has the
possession, but merely a right of action for their
possession;
4) Includes personal chattels which are not in
possession, and all property in action which depends
entirely on contracts express or implied;
5) A right to receive or recover a debt, demand, or
damages on a cause of action ex-contractu or for a
tort or omission of a duty.
Chose in Possession (Tangible Personal Property)
- Personal thing of which one has possession
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Goodwill
- the PATRONAGE of any established trade or business
- the BENEFIT acquired by an establishment BEYOND the
mere value of the capital stocks, funds, or property
employed therein IN CONSEQUENCE OF THE GENERAL
PUBLICS PATRONAGE AND ENCOURAGEMENT which
it receives from its customers.
Trademark
- the name or symbol of goods made or manufactured.
Trade name
- the name or symbol of a store or business place
Service Mark
- the name or symbol of services rendered.
Copyright
- the right of literary property as recognized and sanctioned
by positive law.
Will
- an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
Succession
- a mode of acquisition by virtue of which the property,
rights and obligations, to the extent of the value of the
inheritance, of a person are transmitted through his death
to another or others either by his will or by operation of
law.
Theories on the Proper Law for the Transmission of Successional
Rights
1) Unitary or Single System- one law governs the
transmission of both real and personal property
2) Split or Scission System- one law governs real property
while another determines successional rights to personal
property.
WILLS, SUCCESSION, AND ADMINISTRATION
FACTUAL SITUATION
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POINT OF CONTACT
c) made by aliens in
the Philippines
3) Intrinsic Validity of wills
(including order of
succession, amount of
successional rights, and
intrinsic validity of the
provisions of the will)
4) Capacity to succeed
5) Revocation of wills
a) if done in RP
b)if done outside RP
- by a non-domiciliary
-
by a domiciliary
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probate is enough)
7) Executors and
administrators
a) where appointed
a) if domiciled- where
domiciled at death
b) powers
Holographic Wills
- a will which is entirely written, dated and signed by the
hand of the testator himself.
- Subject to no other form and need not be witnessed.
- The disposition of the testator written below his signature
must be dated and signed by him in order to make them
valid as testamentary dispositions.
Decedent and Testator
- decedent is the general term applied to the person whose
property is transmitted through succession, whether or not
he left a will, if he left a will, he is also called a testator.
Testamentary Capacity
- the capacity to comprehend the nature of transaction in
which the testator is engaged at the time,
- to recollect the property to be disposed of and the persons
who would naturally be supposed to have claims upon the
testator, and
- to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.
Attestation Clause
- the clause wherein the witnesses certify that the
instrument has been executed before them, and the
manner of the execution of the same.
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Estate
- the interest which a person has in lands, or any other
subject of property
Obligation
- a juridical necessity to, to do or not to do.
- A juridical relation whereby a person (creditor) may
demand from another (debtor) the observance of a
determined conduct and in case of breach, may demand
satisfaction from the assets of the latter.
Contract
- a meeting of the minds between 2 persons whereby one
binds himself, with respect to the other, to give something
or to render some service.
- An agreement which creates an obligation
- Agreement upon sufficient consideration, to do or not to
do a particular thing.
- May be express or implied.
Express Contract
- the agreement is formal and stated verbally or in writing
- the terms of the agreement are declared by the parties in
writing or verbally at the time it is entered into
Implied Contract
- the agreement in fact is presumed or inferred from the
acts of the parties
- may also arise from mere consent
- where one party rendered services to another, and these
services were accepted by the latter, in the absence of
proof that the services were rendered gratuitously, an
obligation results to pay the reasonable worth of the
services rendered upon the implied contract of hiring,
under the principle of facio ut des, i.e., I do that you may
give.
Tort
- a legal wrong committed upon anothers person or
property, independent of a contract
Crime
- an act or omission punishable by law
Felony
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Offense
- transgression against a special law
Infraction
- transgression against a local or municipal or local
ordinance
Corporation
- an artificial being created by operation of law, having the
right of succession and the powers, attributes, and
properties expressly authorized by law or incident to its
existence.
Natural Moral Law
- rule of human conduct implanted by God in our nature
and in our conscience, urging us to do whatever is right
and avoid whatever is evil.
Special Laws
- regulate, for instance, the treatment of foreign insurance
companies, the reciprocal privileges in the matters of
patents, the requisites before an alien may obtain a
copyright, the conditions under which alien retail trade
may still continue, and the grant of incentives to foreign
investors.
LEX SITUS
- law of the place where the property is situated
- governs almost everything that concerns real property:
formalities for their alienation, the capacity to encumber
or otherwise dispose of them, and so forth.
- In the Philippines, this rule applies to both real and
personal property.
LEX LOCI CELEBRATIONIS
- law of the place of the celebration or execution
- governs generally all transactions insofar as
FORMALITIES OR SOLEMNITIES are concerned.
- One important exception to this rule is whenever
property is involved, in which a case it is the lex
situs that should control.
Criminal Law Principle of Territoriality
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FORUM-SHOPPING
- the practice of looking over the courts of the world for
possible advantages ought to be curbed
PUBLIC POLICY
- the manifest will of the state
- that which it desires on account of its own fundamental
principles of justice, its own perception of morals, and its
deep-rooted traditions for the common weal.
COMITY BASED ON RECIPROCITY
- if the laws and judgments of the forum are recognized in a
foreign state, the forum in turn will recognize the laws and
judgments emanating from said foreign state.
RECOGNITION OF A FOREIGN JUDGMENT
- our courts will allow said FOREIGN JUDGMENT TO BE
PRESENTED AS A DEFENSE TO A LOCAL LITIGATION
- involves merely the sense of justice
- does not require either action or a special proceeding
- may exist without enforcement
ENFORCEMENT OF FOREIGN JUDGMENTS
- a plaintiff wants the courts to POSITIVELY CARRY OUT
AND MAKE EFFECTIVE IN THE PHILIPPINES A
FOREIGN JUDGMENT
- virtually implies a direct act of sovereignty
- necessitates a separate action or proceeding brought
precisely to make the foreign judgment effective
- necessarily carries with it recognition
Extrinsic Fraud
- fraud based on facts not controverted or resolved in the
case where the judgment was rendered.
Intrinsic Fraud
- fraud which goes to the very existence of the cause of
action.
PURELY INTERNAL RULE
- Governs a purely domestic problem, one without any
foreign element
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CONFLICTS RULE
- applies when the factual situation involves a foreign
element
- merely indirectly responds by indicating whether internal
or foreign law is to be applied.
FACTUAL SITUATION
- set of facts presenting a conflicts problem
- defines its object certain operatives facts
- raises a legal question
POINT OF CONTACT OR THE CONNECTING FACTOR
- the law of the country with which the factual situation is
most intimately connected.
CAPACITY TO SUCCEED
- The factual situation indicating that a person is dead, and
someone alleges a right or capacity to inherit from the
former.
TOTALITY APPROACH
- getting the law intended by the parties to govern the
contract then applying the intended law in its totality
including its periods of prescription and its statute of
frauds.
LEX FORI THEORY
- the forum considers its own concepts its own
characterization, otherwise there will be a virtual
surrender of sovereignty right in the forums own home.
LEX CAUSAE THEORY
- the exact opposite of the lex situs theory
- the law identified in the choice-of-law stage of the conflict
process as the one to be applied to determine the case
- the characterization of the foreign state, which is the
principal point of contact, is supposed to be followed.
UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH
THEORY
- common factors both in the LEX FORI and the LEX
CAUSAE are taken into consideration in order to avoid
unjust results
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Extraordinary Children
- if the intra-uterine life be less than 7 months
- the child must have lived for at least 24 hrs. after its
complete delivery from the maternal womb
NCC Article 40. Birth determines personality; but the conceived
child shall be considered born for all purposes that are favorable
to it, provided it be born later with the conditions specified in
the following article.
NCC Article 41. For civil purposes, the fetus is considered born if
its is alive at the time it is completely delivered from the
mothers womb. However, if the fetus had an intra-uterine life of
less than 7 months, it is not deemed born if it dies within 24 hrs.
after its complete delivery from the maternal womb.
Presumptive Personality
- Personality does not begin at birth, it begins at conception.
It is essential that birth should occur later, otherwise the
fetus will be considered as never having possessed legal
personality.
Emancipation
- takes place by the attainment of majority. Unless
otherwise provided, majority commences at the age of 18
yrs.
Absence
- the legal status of a person who disappears from his
domicile, his whereabouts being unknown
- Article 384 of the Civil Code:
2 years having elapsed without any news about the
absentee or since the receipt of the last news, and 5 years in
case the absentee has left a person in charge of the
administration of his property, his ABSENCE may be
declared.
-
PRESUMPTION OF DEATH
Article 390. [ORDINARY ABSENCE] After the absence of 7
years, it being unknown whether or not the absentee still lives,
he shall be presumed dead for all purposes, except those of
succession.
The absentee shall not be presumed DEAD for the purpose of
opening his succession till after an absence of 10 years.
If he disappeared after the age of 75 years, an absence of 5
years shall be sufficient in order that his succession may be
opened.
In ordinary absence- death is presumed to have occurred on the
last day of the period
In extraordinary / qualified absence- death is presumed to have
occurred at the beginning of the period.
SURVIVORSHIP
The rules on survivorship are found in Article 43 of the Civil
Code and in Rule 131 of the Rules of Court:
Article 43 CC. If there is doubt, as between 2 or more persons
who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other,
shall prove the same;
IN THE ABSENCE OF PROOF, it is presumed that THEY DIED
AT THE SAME TIME AND THERE SHALL BE NO
TRANSMISSION OF RIGHTS FROM ONE TO THE OTHER.
Rule 131, Sec. 3 (jj) Rules of Court:
When 2 or more persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died
first, and there are no particular circumstances from which it
can be inferred, the survivorship is presumed from the
probabilities resulting from the STRENGTH AND AGE OF THE
SEXES, according to the following rules:
1. if both were under the age of 15, the older is presumed to
have survived;
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* between foreigners
* mixed
POINT OF CONTACT
1.)
LEX LOCI CELEBRATIONIS
(without prejudice to the
exceptions under bigamous,
polygamous, and incestuous
marriages and consular
marriages
LEX LOCI CELEBRATIONIS
except if the marriage is:
a) Highly immoral (like
bigamous and
polygamous
marriages)
b) Universally
considered
incestuous, ie., bet.
Brothers and sisters
and bet. Ascendants
and descendants.
LEX LOCI CELEBRATIONIS
except if the marriage is:
c) Highly immoral (like
bigamous and
polygamous
marriages)
d) Universally
considered
incestuous, ie., bet.
Brothers and sisters
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mixed
MARRIAGE AS A STATUS
FACTUAL SITUATION
1) Personal Rights and
Obligations between the
Husband and the Wife
POINT OF CONTACT
NATIONAL LAW OF THE
HUSBAND
Note: Effect of subsequent
change of nationality
a) if both will have a new
common nationality, THE
NEW ONE;
b) if only one will change,
THE LAST COMMON
NATIONALITY
c) if there was never any
common nationality, THE
NATIONAL LAW OF THE
HUSBAND AT THE TIME
OF THE WEDDING
NATIONAL LAW OF THE
HUSBAND, w/o prejudice to Art.
80 of the FC, to wit:
In the absence of a contrary
stipulation in a marriage
settlement, the property
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Sexual Infidelity
- Unfaithfulness in marriage
- Adultery and concubinage are encompassed in the term
Sexual perversion
- an abnormality by a person in matters of sex
Pre-marital Sex
- indulging by an unmarried couple in sexual intercourse
prior to getting married.
Adultery
- voluntary sexual intercourse of a married person other
than the offenders husband or wife
- committed by a married woman who shall have sexual
intercourse with a man not her husband; and by a man
who has carnal knowledge of her, knowing her to be
married, even if the marriage be subsequently declared
void.
OPEN AND NOTORIOUS ADULTERY
- The parties must reside together publicly in the face of
society as if conjugal relations existed between them, and
their so living and the fact that they are not husband and
wife must be known in the community
Concubinage
- committed by any husband who (1)shall keep a mistress in
the conjugal dwelling or (2)have sexual intercourse under
scandalous circumstances with a woman not his wife,
(3)cohabit with her in any other place.
ILLICIT COHABITATION
- the living together as man and wife of two persons who
are not lawfully married with the implication that they
habitually practice fornication (unlawful sexual intercourse
between two unmarried persons).
ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER
- the attempt must not be justified as in the case of lawful
self-defense; nor must it be one where the attempt was
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Art. 61 FC: After the filing of the petition for legal separation,
the spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the
Rules of Court.
Note: The spouses, while may be entitled to live separately from
each other after the filing of the petition, are not required to do
so.
Effects of legal separation:
1) Spouses may live separately
2) Marriage bonds not severed
3) The absolute community or the conjugal partnership
shall be dissolved and liquidated
4) The offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which shall
be forfeited (in accordance with the provisions of Art.
43)
5) The custody of the minor children shall be
awarded to the innocent spouse, subject to Art. 213
of FC
6) The offending spouse shall be disqualified from
inheriting from the innocent spouse by
intestate succession.
7) The provisions in favor of the offending spouse
made in the will of the innocent one shall be
revoked by operation of law. (the provisions of the
will being referred to here are provisions made PRIOR
TO and NOT AFTER the decree of legal separation;
otherwise it cannot be said that the decree revokes
any provision, for the will had not yet been made.)
TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT
SPOUSE:
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Lineal Consangunity
- subsists between persons of whom one is descended in a
direct line from the other and so upwards in the direct
ascending line and so downwards in the direct descending
line.
COLLATERAL CONSANGUINITY
- Subsists between persons who have the same ancestors,
but who do not descend or ascend one from the other
DIRECT AFFINITY
- subsists between the husbands and his wifes relations by
blood, or between the wife and the husbands relations by
blood.
SECONDARY AFFINITY
- subsists between the husbands and his wifes relations by
marriage
COLLATERAL AFFINITY
- Subsists between the husband and the relations of his
wifes relations
ENUMERATION
Elements of Private International Law:
1. Conflict of laws is that part of the municipal law of the
State
2. The direction to Courts and Administrative agencies
3. A legal problem involving a foreign element
4. The application or non-application of foreign law/foreign
laws
Importance of Conflict of Laws
1. To adjust conflicting rights in international mercantile and
corporate transactions
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LEX FORI
LEX CAUSAE
UNIVERSAL ANALYTICAL
DUAL THEORY OF LEX FORI AND LEX CAUSAE
AUTONOMOUS THEORY
TOTALITY THEORY
2. juridical capacity
Characteristics of Status: (CCUPS)
1. conferred principally by the State
2. a matter of public or social interest
3. a concept of social order
4. cannot be easily terminated at the mere will or desire
of the parties concerned
5. generally supposed to have a universal character
THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD
GOVERN STATUS AND CAPACITY IN GENERAL
1. Nationality Theory- Personal Theory
2. Domiciliary Theory- Territorial Theory
3. Situs Theory- Eclectic Theory
3 Kinds of Citizens of the Philippines
1. Natural-born
2. Naturalized
3. Citizen by election
2 Theories on Whether Place or Ancestry Determines Citizenship
1. Jus Soli
2. Jus Sanguinis
Citizens of the Philippines Under the 1987 Constitution
1. Those who are citizens of the Philippines at the time of the
adoption of the 1987 Constitution
2. Those whose fathers or mothers are citizens of the
Philippines
3. Those born before 17 January 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority
4. those who are naturalized in accordance with law.
Qualifications for Naturalization
1. AGE. The petitioner must not be less than 21 years old on
the date of the hearing of the petition
2. RESIDENCE. he must have resided in the Philippines for a
continuous period of not less than 10 years.
3. MORAL. He must be of good moral character and
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ASPECTS OF MARRIAGE
1. As a contract
2. As a union, a status, a legal relation
Substantial or Essential Requisites of Marriage of Filipinos
1. legal capacity of the contracting parties
2. consent of the contracting parties freely given
3. marriage license, except in marriage of exceptional
cases
4. authority of the person solemnizing the marriage
5. marriage ceremony
Personal Rights and Obligations between the husband and the
wife
1. Mutual fidelity, cohabitation, and respect
2. Mutual assistance and support
3. Right of the wife to use the husbands name
STATELESSNESS
1. DEPRIVATION of citizenship for any cause.
2. RENUNCIATION of nationality by certain acts, express or
implied
3. VOLUNTARY RELEASE from his original state
4. BORN in a country which recognizes only the principle of
jus sanguinis but whose law of the parents recognizes only
the principle of jus soli.
Personal Law of stateless individuals
The Hague Conference of 1928 on International Private Law
suggested that the personal law of stateless individuals shall be:
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POINT OF CONTACT
National law of the child
National law
National law
National law
National law
National law
Lex fori
POINT OF CONTACT
The law alleged to have been
violated: in other words, it is
the law of the place of
celebration (lex loci
celebrationis) subject to
certain exceptions that furnish
the grounds)
Article 36:
A marriage contracted by any party, who at the time of the
celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall likewise
be void even of such incapacity becomes manifest only after its
solemnization.
Article 37:
Marriages between the ff. are incestuous and void from the
beginning whether the relationship between the parties be
legitimate or illegitimate:
1. between ascendants and descendants of any
degree
2. between brothers and sisters of the full or half
blood
Article 38:
The ff. marriages shall be void from the beginning for reasons of
public policy:
1. between collateral blood relatives, whether legitimate
or illegitimate, up to the 4th civil degree
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between the adopting parent and adopted child
5. between the surviving spouse of the adopted child
and the adopter
6. between an adopted child and a legitimate child of the
adopter
7. between adopted children of the same adopter
8. between parties where one, with the intention to marry
the other, killed that persons spouse, or his or her
own spouse.
REQUIREMENTS TO PROVE A FOREIGN MARRIAGE:
1. the existence of the pertinent provision of the foreign
marriage law
2. the celebration or performance of the marriage in
accordance with said law
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POINT OF CONTACT
1) lex fori (therefore, will not
be granted)
a) bet. Filipinos
a)
b) bet. Foreigners
c) mixed
ANNULMENT
Ends a marriage which though
considered valid in the interim,
nonetheless, is DEFECTIVE
Granted for causes
Granted for causes AT THE
SUBSEQUENT to the marriage VERY TIME THE MARRIAGE
ceremony
IS ENTERED INTO
KINDS OF DIVORCE:
1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee)
marital ties are dissolved.
2) RELATIVE DIVORCE (divorce a mensa et thoro)separation from bed and board or legal separation,
where parties remain married, although this time,
they are allowed to live separately from each other.
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND
FUNERALS
FACTUAL SITUATION
- Paternity and filiation
- Including Parental
Authority and
- Reciprocal support
- Legitimacy
- Legitimation
- Recognition
- Presumptions of
legitimacy
- Rights and obligations of
parents and children
- Including parental
authority and reciprocal
support
Guardianship
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POINT OF CONTACT
If legitimate, NATIONAL LAW
OF THE FATHER
If illegitimate, NATIONAL LAW
OF THE MOTHER.
If illegitimate but recognized
by the father, the NATIONAL
LAW OF THE FATHER.
Determination of whether
legitimate or illegitimate,
NATIONAL LAW OF THE
FATHER, in general.
Doctrine of Immutability of
Status- change of parents
nationality does not affect the
status of the child.
In general, NATIONAL LAW OF
THE ADOPTER.
In the Philippines, adoption by
a Filipino does not confer
Filipino citizenship on an
adopted alien child.
powers of guardian
powers of guardian
powers of guardian
FUNERALS
-
SOLUTIONS:
Government Interest Analysis - the law of the country whose interest is most
impaired by failure to apply its statute should be applied
Borrowing Statute - the law of the country has a statute borrowing the
prescriptive period provided in the foreign statute; EXCEPTION: when contrary
to public policy or prohibitive laws
2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the
Most Significant Relationship Theory)
Law of the state which has the most significant relationship with the occurrence and
with the parties determines their rights and liabilities in tort or in contract
3. Renvoi Doctrine (Table Tennis Theory)
The conflict of law rule of the forum resorts to the foreign law, which in turn refers
back to the law of the forum.
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FACTS:
Edward Christensen, who at his death was a US citizen but domiciled in the
Philippines, left a will, devising unto Maria Helen a certain amount of money and
giving the rest of his estate to Maria Lucy. Helen opposed the partition on the ground
that she is deprived of her legitime. Her contention is that the law of California directs
that the law of the domicile (Philippines) should govern the will.
ISSUE: Whether or not the national law or the domiciliary law should apply
HELD:
The intrinsic validity of wills is governed by the national law of the decedent. In the
present case, the national law of Edward is the laws of California. However, there were
two conflicting California laws regarding succession. One is enunciated in In Re
Kaufman (which does not provide for legitimes) and another is Art. 946 of the
California Civil Code (which provides that the law of the domicile applies). SC held
that the national law is Art. 946, which is the conflict of laws rule of California. The
reason is that In Re Kaufman applies only to residents while Art. 946 is specific to nonresidents. Thus, since Art. 946 contains a refer-back to Philippine laws (the law of the
domicile), then Maria Helen is entitled to her legitime.
4. Lex Fori
The law of the forum governs all matters pertaining to procedural or remedial rights.
B. Applicability of Foreign Laws and its Exceptions
WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN
APPLICATION:
1. Foreign law contravenes prohibitive law or public policy of the forum
2. Relationship of the parties affects public interest
3. Real property is involved (apply lex rei sitae)
4. Foreign law, judgment or contract is contrary to a sound and established public
policy of the forum
5. Foreign law is procedural in nature (lex fori governs procedural matters)
6. Foreign law is penal in nature
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Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29,
1999
FACTS:
Bank of America, duly licensed to do business in the Philippines and existing under the
laws of California, USA, granted US Dollar loans to certain foreign corporate
borrowers. These loans were secured by two real estate mortgages by American Realty,
a domestic corporation. When the borrowers defaulted, Bank of America sued them
before English courts. While these cases were pending, Bank of America likewise
judicially foreclosed the real estate mortgages in the Philippines. Thus, American
Realty sued for damages against Bank of America.
ISSUE: Whether or not Bank of America can judicially foreclose the real estate
mortgages despite pendency of the civil suits before English courts
HELD:
English law purportedly allows the filing of judicial foreclosure of mortgage despite
pendency of civil suit for collection. But English law was never properly impleaded
and proven. Thus, the doctrine of processual presumption applies.
SC further held that even assuming arguendo that English laws were proven, said
foreign law would still no find applicability. When the foreign law, judgment or
contract is contrary to a sound and established public policy of the forum, the said
foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be
rendered ineffective b laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. The public policy sought to be protected
in the instant case is the principle imbedded in our jurisdiction proscribing the splitting
of a single cause of action.
Moreover, the foreign law should not be applied when its application would work
undeniable injustice to the citizens or residents of the forum.
C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign
Judgments
**To be recognized by Philippine courts, foreign laws and judgments must be alleged
and proved.
HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED:
1. Official publication
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2. Certified true copy or one attested by the officer having the legal custody of the
record, or by his deputy, and accompanied with a certificate that such officer has
custody
**If the foreign law or judgment does not comply with the above requirements, it will
not be recognized and the Doctrine of Processual Presumption will apply (Philippine
courts will assume the foreign law is the same as Philippine laws).
GENERAL RULE: Philippine courts are not authorized to take judicial notice
of foreign laws.
EXCEPTIONS:
Where there are exceptional circumstances when the foreign laws are already
within the actual knowledge of the court (generally known or actually ruled
upon in a prior case)
Where the courts are familiar with the specific foreign laws (e.g. Spanish civil
law)
Where the adverse party did not dispute the application of foreign law
Where the tribunal is a quasi-judicial body which is not bound by strict rules of
technicality
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